McNamara v. McNamara

• Decision Date: 28 September 2021
• Docket Number: AC 43391
• Citation: 207 Conn.App. 849,263 A.3d 899
• Parties: James M. MCNAMARA v. Kristine MCNAMARA
• Court: Connecticut Court of Appeals

207 Conn.App. 849

263 A.3d 899

James M. MCNAMARA

v.Kristine MCNAMARA

AC 43391

Appellate Court of Connecticut.

Argued April 7, 2021

Officially released September 28, 2021

Olivia M. Eucalitto, Hartford, with whom, on the brief, was Janet A. Battey, for the appellant (defendant).

Christopher P. Norris, for the appellee (plaintiff).

Alvord, Alexander and Eveleigh, Js.

ALVORD, J.

In this postdissolution matter, the defendant, Kristine McNamara, appeals from the judgment of the trial court granting her attorney's motion to withdraw his appearance, denying her motion for a continuance, and granting the motion of the plaintiff, James M. McNamara, for modification of certain custody orders. On appeal, the defendant claims that the court (1) abused its discretion in granting her attorney's motion to withdraw, (2) violated her right to procedural due process in denying her motion for a continuance, (3) abused its discretion in denying her motion for a continuance, and (4) abused its discretion in awarding the plaintiff final decision-making authority on issues concerning the health, treatment, and therapeutic providers of the parties’ children. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the defendant's claims. The court, Winslow , J. , dissolved the parties’ eleven year marriage on September 27, 2013. The judgment of dissolution incorporated by reference the parties’ separation agreement and parenting plan agreement (parenting plan agreement), both dated September 26, 2013. The parenting plan agreement provided, inter alia, that the plaintiff had sole legal custody of the parties’ two minor children. On January 4, 2016, with the approval of the court, Eschuk , J. , the parties agreed to amend the parenting plan to provide that the parties would have "joint legal and physical custody of the children." On November 6, 2018, with the approval of the court, Eschuk , J. , the parenting plan agreement again was modified to provide the defendant with additional parenting time.

On January 11, 2019, the plaintiff filed a motion for modification. On May 15, 2019, the plaintiff filed a second amended motion for modification (operative motion for modification), in which he sought amendments to the parties’ parenting time, holiday parenting time, parental communication practices, and medical and educational final decision-making authority. A hearing on the plaintiff's motion for modification was scheduled for August 8 and 9, 2019.

On July 31, 2019, the defendant's counsel, Attorney William Chabb, filed a motion to withdraw his appearance. Attorney Chabb represented that effective communication with the defendant had broken down, the defendant had stated that she did not trust him, and the defendant did not value or follow his reasonable advice or acknowledge the risks of an unfavorable result at trial. As a result, Attorney Chabb represented that he could not effectively or adequately represent the defendant's interests in the matter and that opposing counsel did not object to the granting of the motion. A hearing was set on the motion to withdraw for August 5, 2019, at which the parties appeared before the court, Hon. Heidi G. Winslow , judge trial referee. After the hearing, and on that same date, the court granted the motion. The defendant thereafter made an oral request for a continuance in order to obtain new counsel, which the court denied.

On August 6, 2019, the defendant filed a motion for continuance, seeking to have the hearing on the plaintiff's motion for modification continued to September 6, 2019. She asserted, as her reason for requesting a continuance: "I need more time because my lawyer withdrew yesterday. I have no legal professional representation for my hearing." The motion stated that the plaintiff had not consented to the continuance. The court, Eschuk , J. , denied the motion on the same day it was filed.

The plaintiff's operative motion for modification was heard by the court, Hon. Heidi G. Winslow , judge trial referee, on August 8 and 9, 2019. On August 9, 2019, the court made findings on the record and, on August 12, 2019, the court issued a written order, providing, inter alia, that: "The parties shall have joint legal custody of the minor children. The parties shall be equally involved in all major decisions affecting the children. The party with whom the children are staying at the time will have the right to make emergency decisions affecting the children. All other important decisions affecting the health, welfare, education, religious upbringing, guidance, discipline or other aspect of the upbringing of the children shall be made with the participation, involvement and agreement of both parents. Neither party shall be entitled to act unilaterally as to important decisions affecting the children until there has been a bona fide attempt to reach agreement. If, however, the parties are unable to agree on a physical health, emotional health, or therapeutic treatment decision or selection of the providers of such services, the plaintiff shall have the final say. Physical and emotional health care appointments, as well as therapeutic services, shall be scheduled to occur on some of the parenting time of each parent." On August 26, 2019, the defendant filed a motion to reargue the court's August 12, 2019 custody orders, which was denied. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant's first claim on appeal is that the court abused its discretion in granting Attorney Chabb's motion to withdraw his appearance. Specifically, she argues that it was improper to permit Attorney Chabb to withdraw seventy-two hours before the hearing on the plaintiff's motion for modification was scheduled to begin and that the court's determination that she did not object to Attorney Chabb's withdrawal is contradicted by the transcript. The plaintiff responds that the defendant was clear as to her desire to hire new counsel and she did not object to Attorney Chabb's withdrawal. We conclude that the court did not abuse its discretion in granting the motion to withdraw.

The following additional facts and procedural history are relevant to our resolution of this claim. At the beginning of the August 5, 2019 hearing on Attorney Chabb's motion to withdraw his appearance, the court recessed briefly to give the defendant and Attorney Chabb time to speak with each other. The court then heard argument from Attorney Chabb before turning to the defendant for her position on the motion. The defendant explained: "I feel that [Attorney] Chabb is not informing me and protecting my legal rights by guiding me in the direction that I need to be guided in." The defendant stated that Attorney Chabb had e-mailed her on May 29, 2019, to inform her that she could ask for a deposition of the plaintiff if she wanted to do so. She explained that he had sent her a letter on August 1, 2019, in which he indicated that he had e-mailed her regarding the "use and necessity of a deposition." The defendant stated that Attorney Chabb had falsely said that she was under stress and pressure and that she had virtually no contact with him during July, 2019. She represented that "[I]t's been all along where I've gone to court and he hasn't reviewed to me what is actually coming up onto to be discussed. And I go into court and, [for] example, the November 6, whatever happened that day, it was the day before that I saw that the opposing side wanted to change something in the parenting plan. But I had met with [Attorney] Chabb the day before and we discussed an entirely different motion. So, I walked into court the next day and I was basically blindsided by a proposal handed to the judge that I didn't even read." The defendant further represented that, on another occasion, Attorney Chabb again had not informed her of the subject matter of an upcoming hearing.

The defendant then explained to the court that she was very busy because of her parenting time with the parties’ children. She stated that she had not filed any objection to the plaintiff's request for medical and educational decision-making authority because she had not been told that she was supposed to be filing an objection. She concluded her argument by stating: "[U]nfortunately I can't seem to, for whatever reason, the relationship is—I can't seem to get good counsel. And I'm just looking for a fair and honest ... process with good legal counsel so that I can put on a case to show the court the good, dedicated mother that I am. Thank you, Your Honor."

After sharing her position, the court followed up by asking the defendant how she responded to Attorney Chabb's May 29, 2019 e-mail regarding the deposition, and whether she let Attorney Chabb know whether she wanted to have the plaintiff deposed. After this line of inquiry, the court stated: "[W]ell, what I think I'm hearing from you is that you're agreeing that your relationship with [Attorney] Chabb has broken down." The defendant responded: "I—you know, I spent $30,000 and I—if there's some way that we can work it out. My problem is that if I go to try and get another lawyer, you know—I've called and sort of inquired, you know, it would be a $30,000 retainer. So I, you know, I've tried to—to—." The court then interjected: "And really short notice since your hearing is later this week."

The court then inquired of the defendant regarding her willingness to share with Attorney Chabb certain e-mails. The defendant stated: "[I]f [the plaintiff's] entire motion is gonna be heard on the 8th and 9th, he has not asked, sat down with me, and asked me for any e-mails to discuss anything. And so he's telling me now, the other day, that in three to four hours he can prepare me for this hearing but he's spent no time and he's asked for no e-mails of what it is that could support my case against these false allegations that the other side is making." The court and the...